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Herbalife Motion to Dismiss Lack of Personal Jurisdiction

Herbalife Motion to Dismiss Lack of Personal Jurisdiction

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Published by Jeffrey Armistead

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Published by: Jeffrey Armistead on Aug 19, 2011
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08/19/2011

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709123.0001/797113.1
PAGE 1-DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TRANSFER 
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
Kenneth R. Davis, II
, OSB No. 97113davisk@lanepowell.com
LANE POWELL
PC
601 SW Second Avenue, Suite 2100Portland, Oregon 97204-3158Telephone: 503.778.2100Facsimile: 503.778.2200
M. John Carson
,
 Pro Hac Vice Status Pending 
JCarson@foley.com
Leila Nourani
,
 Pro Hac Vice Status Pending 
lnourani@foley.com
FOLEY & LARDNER LLP
555 S Flower Street, #3500Los Angeles, CA 90071Telephone: 213.972.4500Facsimile: 213.486.0065
Pauline A. Mueller
,
 Pro Hac Vice Status Pending 
 pmueller@foley.com
FOLEY & LARDNER LLP
321 N Clark Street, Suite 2800Chicago, IL 60654Telephone: 312.832.4500Facsimile: 312.832.4700Attorneys for Defendant Herbalife International, Inc.UNITED STATES DISTRICT COURTDISTRICT OF OREGON
ADIDAS AMERICA, INC.
and
ADIDASAG,
Plaintiffs,v.
HERBALIFE INTERNATIONAL, INC.,
Defendant.CV No. 09-661-MODefendant Herbalife International, Inc.’s
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFMOTION TO DISMISS FOR LACK OFPERSONAL JURISDICTION OR, INTHE ALTERNATIVE, TRANSFER TOCENTRAL DISTRICT OF CALIFORNIA
Case 3:09-cv-00661-MO Document 13 Filed 07/10/09 Page 1 of 19 Page ID#: 154
 
709123.0001/797113.1
PAGE 2-DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TRANSFER 
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
I.INTRODUCTION
Defendant Herbalife International, Inc. (“Herbalife”), by and through its attorneys,respectfully moves this Court to dismiss or transfer venue of Plaintiffs adidas America, Inc.’sand adidas AG’s (“Plaintiffs”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2)and (3) and 28 U.S.C. § 1406(a), because this Court does not have personal jurisdiction over Herbalife and Plaintiffs’ claims for relief are improperly venued in the District of Oregon.Herbalife does not have the requisite minimum contacts in Oregon the events and circumstancessurrounding the contract at issue in this case and that give rise to the claims at issue did not occur did not occur in this District. Plaintiffs’ Complaint should be dismissed or transferred for lack of  personal jurisdiction and improper venue. In the alternative, venue should be transferred in theinterest of justice and convenience to parties and witnesses pursuant to 28 U.S.C. § 1404(a), tothe United States District Court, Central District of California, where Herbalife’s concurrentaction is already pending.
II.FACTS
Herbalife and Plaintiff adidas AG had been negotiating a settlement regarding the disputeover the meaning and scope of a contract addressing trademark rights. Declaration of M. JohnCarson (“Carson Decl.”), ¶¶2-3. adidas requested further settlement discussion, includingHerbalife’s positions on the contract issues. Carson Decl. ¶¶4-8. Rather than respond to theletter in which Herbalife set out its positions, Plaintiffs filed their Complaint and Demand for Jury Trial (“Complaint”) on June 12, 2009. Carson Decl. 10. The suit was filed in Oregon as aresult of forum-shopping on the part of adidas, and was accomplished by adding adidas Americaas a plaintiff, though this corporation was not a signatory to the Agreement.In its Complaint, Plaintiffs allege that the Court has personal jurisdiction over Herbalife because Herbalife has distributed or sold infringing merchandise within the State of Oregon,engaged in acts or omissions within the state of Oregon causing injury, and has otherwise madeor established contacts with this State sufficient to permit the exercise of personal jurisdiction.
Case 3:09-cv-00661-MO Document 13 Filed 07/10/09 Page 2 of 19 Page ID#: 155
 
709123.0001/797113.1
PAGE 3-DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR TRANSFER 
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
Complaint
 ,
 ¶ 6. Plaintiffs also claim venue in the District of Oregon is proper because asubstantial part of the events or omissions giving rise to adidas’ claims occurred in the District.Complaint, ¶ 7. However, Plaintiffs provide no facts to support their claims that the Court has personal jurisdiction over Herbalife or that the case is properly venued in the District of Oregon.Plaintiffs do not allege any facts to support its assertion that this Court has personal jurisdictionover Herbalife because none exist.The issue in this case is whether there was a breach of the 1998 Agreement betweenHerbalife and adidas AG regarding the usage of, respectively, their TRI-LEAF and TREFOILmarks. The goods at issue in this lawsuit are Herbalife’s apparel products, not Herbalife’snutritional and body care products. The impetus for filing suit, rather than continuingnegotiations, was the use of Herbalife’s corporate name and TRI-LEAF mark on the Los AngelesGalaxy soccer team’s jerseys in connection with Herbalife’s sponsorship of the team. Given thesubject of the agreement, the parties to the agreement, and the goods at issue, personal jurisdiction over Herbalife in Oregon is improper.
The Agreement was between adidas AG, a German corporation, and Herbalife, a Nevada corporation with primary place of business in California. Declaration of James Berklas (“Berklas Decl.”), Exhibit 1.
The Agreement was signed by Herbalife and by adidas AG, a German corporation.Plaintiff adidas America was not a signatory to the Agreement. Berklas Decl.,Exhibit 18.
Herbalife negotiated, executed, and signed the Agreement in California. BerklasDecl. ¶ 17.
Herbalife’s records regarding the Agreement are all located in California. Recordsrelating to Herbalife’s production of allegedly infringing goods are all located inCalifornia. Berklas Decl. ¶ 19.
Case 3:09-cv-00661-MO Document 13 Filed 07/10/09 Page 3 of 19 Page ID#: 156

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